It nearly Put Burr in the saddle in 1800
It failed to confirm the people’s choice in 1824, 1876, and 1888
It could have ditched Kennedy in 1960

The chief reason which induced the delegates to the Constitutional Convention of 1787 to institute Electors was a distrust of democracy held by many of them. A sparse handful (Benjamin Franklin, John Dickinson, Gouverneur Morris, James Wilson) argued for popular election of the Executive. But the greater number held with Roger Sherman that “the people at large” could never be “sufficiently informed” to make a proper choice. To leave it to the people would be as “unnatural,” scoffed George Mason, “as it would be to refer a trial of colors to a blind man.” Elbridge Gerry (later to devise the cynical “gerrymander” to give his party numerical advantage in the Massachusetts legislature) was not merely patronizing; he believed the evils of the times flowed “from the excess of democracy.”

But if the Founding Fathers were thus contemptuous of popular democracy, they were enamored of representative democracy. There is no paradox here if we understand that “representation” in their comprehension was not direct and instructed, but “virtual” and paternalistic, as in England. Elected legislators were considered to represent the interests not only of the gentry who elected them, but also of the “great unwashed” (as Edmund Burke first termed them) and of the unfranchised in their constituencies.

Dedicated to the principle of representative democracy on these terms, and to its corollary of legislative supremacy, the majority of the delegates voted first and last for appointment of the national Executive by Congress. Between first and last, they let themselves be persuaded to consider, and even adopt briefly, a do/en different methods. At the same time they tussled over the troublesome problems of how many persons the Executive should comprise, its tenure, re-eligibility, powers, and prerogatives. Discussion of each problem led to fresh consideration of the method of appointment, and construction of this part of the Constitution took more time and involved more debate than all the rest together. In the end the Fathers reverted to their original instinct: appointment of the President (as he was by now called) by the Congress.

But it wasn’t quite the end, as it turned out. A committee now took over the chore of polishing the rough product the Convention had fashioned. On the committee sat Gouverneur Morris, who had argued that under the plan decided on, the Executive would be the “mere creature” of the Congress; that this method would “result in executive dependence, and consequently in legislative usurpation and tyranny, as happened in England in the last century.” (He referred to the Cromwell protectorate.)

With him was James Madison, who had opposed legislative appointment because it did violence to his cherished doctrine of separation of powers. Together, Morris and Madison persuaded their colleagues to adopt the plan used by Maryland for electing its state senators—a body of electors. Each state would have as many Electors as it had senators and representatives, appointed “in such manner as the Legislature thereof may direct.” They would meet in their respective states, on a day fixed by Congress, and vote for two men (at least one being from another state) but make no distinction between them. If any candidate received a majority of the votes of the whole number of Electors, he would become President. The runner-up would be Vice President—an office newly devised.

The Florida Case—Before the Electoral Commission

In February, 1877, members of both houses of Congress, a specially chosen Electoral Commission, and privileged visitors all crowded into the Supreme Court Cliamber to hear argument over the counting of electoral voles for the disputed Tilden-Hayes election. The amazing painting by Cornelia Adele Fassett, showing more than 200 recognizable portraits of well-known Americans of the period, dramatizes the intense debate occasioned by the fact that the electoral return from Florida had been challenged by a second set of electoral votes from the same state. Eminent counsel had been retained by both Republicans and Democrats to present arguments for the certification of their respective Electors. The commission (seated in a row on the rostrum, beneath the press gallery) decided by a vote of eight to seven to certify the Republican Electors; and after similar decisions for several other disputed slates, the official electoral count went to Hayes, 185 to 184, despite his minority in the popular vote. The hey below identifies 64 of the most noteworthy figures, many of whom sat individually as models for the artist over a period of some two years.

Significantly, it was considered that not once in twenty times (one man thought not once in fifty) would the Electors give a majority to one man. After all, the country was large—there were thirteen states, some of them weeks of travel apart—and how would a man in, say, Georgia know the name, let alone the qualifications, of a candidate from Massachusetts? If no candidate received a majority, or if two or more were tied for first place, then the choice of President would fall to the House of Representatives; if there was a tie for second, the Senate would choose the Vice President. It was probably this proviso that reconciled the parliamentary supremacists to the scheme.